Join The Conversation

Search and Seizure

ACS Board Member Reuben Guttman and Traci Buschner write for McClatchy DC on how the recent $97 million settlement between the U.S. Department of Justice and Community Health Systems serves as a reminder of why government oversight matters.

Paul Campos discusses the “scam” of for-profit law schools in The Atlantic. “[T]he odds of a graduate of one of these schools getting a job that arguably justifies incurring the schools’ typical debt level are essentially 100 to 1.”

The Huffington Post reports on the detention of journalists Wesley Lowery and Ryan J. Reilly in Ferguson, Mo last night. In light of these arrests, T.C. Sotteck of The Verge details the right of individuals to record the police.

Garrett Epps of The Atlantic warns against labeling Roane County Circuit Judge Russell Simmons a bigot because of his recent ruling on same-sex marriage in Tennessee.

Thomas Geoghegan argues in Politico that President Obama should challenge Republican gerrymandering.

Eighty-three percent of American “voters believe police should get a warrant before searching personal information on someone’s cell phone,” Microsoft General Counsel Brand Smith notes in a post on Digital Constitution.

The survey conducted by the research firm, Anzalone Liszt Grove, following the U.S. Supreme Court’s unanimous opinion in Riley v. California, also reveals that 86 percent of respondents “believe police should have to follow the same legal requirements for obtaining personal information in the cloud as they do for personal information stored on paper.” In Riley, the high court found that police need warrants to search mobile devices of people they arrest.

Smith says that while the Riley decision can be viewed as a “historic first step,” it only addresses “one of many questions that the growth of technology is posing for our privacy laws. We’ve raised another unresolved question in a case in federal court in New York in which we’re challenging a search warrant seeking customer communications stored in our data center in Ireland.”

He continued that Microsoft believes it is a “problem for governments to use a warrant to reach across international borders and search a person’s email without respecting local privacy laws.” Smith then cites the survey that says a majority of Americans agree.

Seventy-nine percent of those polled believe the “federal government should have to respect local privacy laws when searching through people’s personal information like their email accounts.” Moreover, the survey found 56 percent of respondents are “worried” that if the federal government demands “information in other countries without going through their governments, then other countries will follow suit and force companies to turn over Americans’ private information.”

Smith concludes that the polling, all of which is available here, “suggests” Americans understand “what’s at stake for technology and the future of privacy.”

Yesterday, the Supreme Court considered what the Fourth Amendment requires when the police want to search an arrestee’s cell phone. The outcome will depend on how the Court applies an old rule to new technology—a challenge that is likely to recur in the years to come as smartphones, cloud computing and tools like license plate readers change both the way we store information and the government’s ability to collect and analyze it.

Before the police can search your home or property, they need a warrant or an exception to the warrant requirement. One well-established exception is the so-called “search incident to lawful arrest” doctrine. This rule says that the police can search an arrestee without a warrant, simply on the basis of the arrest. The rationale for this exception is that an arrestee might have a weapon on them or try to destroy evidence after they’re arrested. Plus, because an arrestee is being taken into custody, she has a reduced expectation of privacy.

Until recently, this exception was relatively uncontroversial. It meant that the police could look through an arrestee’s pockets, wallet or purse for weapons, drugs or other evidence—something they would be very likely to do anyway while booking the person back at the station.

But how should this rule apply now that we carry our “entire lives on cell phones,” as Justice Kagan put it during oral argument? Should the government be able to rummage through the cell phone of every single person they arrest for hours or days without a warrant? Or, should a different rule apply to phones?

Significant reforms are not far off for the NYPD’s stop-and-frisk program, but you might not know that from headlines of late. Most press has focused on “l’affaire Scheindlin,” but the newspapers have buried the lead: The present and future status of the right of New Yorkers to be free from unconstitutional stops and seizures.
In November, Bloomberg administration lawyers made a last-ditch attempt at the Second Circuit Court of Appeals to undo the district court’s findings that the NYPD has engaged in widespread violations of the Fourth and Fourteenth amendments. Former New York City Mayor Rudy Giuliani and ex-Attorney General Michael Mukasey chipped in their two cents, as the city—hoping to parlay the panel’s removal of Judge Scheindlin—made a bid for the appeals court to vacate the judge’s decisions. This was to no avail, and given the incoming mayor’s firm pledge to withdraw the appeal, the judge’s decisions are not going anywhere soon.

The same cannot be said for the current stop-and-frisk regime. The Second Circuit’s order denying vacatur explicitly contemplates the possibility of an “application to us for a return of the cases to the District Court for the purpose of exploring a resolution,” and every indication is that the case is headed for such a resolution in the New Year. Practically, this will mean that the plaintiffs in Floyd (stop-and-frisk writ large), Ligon (concerning practices in and around “Clean Halls” buildings) and Davis (concerning practices in and around public housing) will seek to reach consensus with the City on needed reforms.

For American communities of color, the latest revelations about U.S. government surveillance, at home and abroad, has been met without much surprise and with a long memory of the injustice suffered by minority groups since our nation’s inception.

“We are a settler-colonial nation,” explained Fahd Ahmed. “Race and social control are central to the project.” As the legal and policy director for Desis Rising Up and Moving, an organization dedicated to organizing and amplifying the voice of immigrant workers, Ahmed has seen first-hand how the government isolates and targets vulnerable populations. In particular, he noted the targeting of Muslims by the NYPD under the supposition of anti-terrorism efforts, but was careful to emphasize the broader scope of the present danger. “These practices won’t be limited to one community,” he said. “After all, surveillance has a purpose – to exert the power of the state and control the potential for dissent.”

Other panelists reached similar conclusions. Surveillance is “not anything new” for people of color, observed Adwoa Masozi, a communications specialist and media activist. Recalling the COINTELPRO programs of the 1960s and 1970s, she named the major difference between then and now: “The government is just more open about it.”

Alfredo Lopez, the founder of May First/People Link, called the recent news an indication that “the ruling class is figuring out how to rule a society that is rapidly changing beneath it.”

Seema Sadanandan of the American Civil Liberties Union’s National Capital Area Affiliate called the last few months a “tough time for white people,” whose relatively unchallenged faith in the Bill of Rights has been profoundly shaken.

Still, the next steps were harder to assess. For example, what role do lawyers and the law have in movements against this kind of surveillance? And how should activists interact, if at all, with the Internet and popular platforms like Facebook and Twitter?